Hello everyone and welcome to this Ethics Alert which will discuss the Florida Bar’s Professional Ethics Committee’s recent approval of Florida Bar Staff Opinion 38049, which addresses lawyer responses to negative online reviews.
On June 15, 2018, the Florida Bar’s Professional Ethics Committee unanimously approved Florida Bar Staff Opinion 38049 which states that a lawyer may post a limited response to a negative online review that the lawyer says falsely accuses her of theft; however, the lawyer may not reveal attorney/client confidences. The Staff Opinion is here: file:///C:/Users/jcorsmeier/Downloads/PRR_Corsmeier_-_38049_KNS_responding_to_negative_online_review_PEC_approved.pdf. The Professional Ethics Committee will not issue a separate opinion.
The lawyer stated in her inquiry that she received a negative online review and would like to respond to the former client’s negative review that the lawyer “took her money and ran” by using the language suggested in Texas Ethics Opinion 662 and adding an “objectively verifiable truthful statement” that the Court entered an order authorizing the lawyer to withdraw as counsel for the former client.
The lawyer stated that she believed the added language was “proportional and restrained, consistent with the Texas Ethics Opinion, directly addressed the allegations of the former client, and should be permissible under the Rules Regulating the Florida Bar and the First Amendment.” The staff opinion found that the post would reveal confidential information without obtaining the former client’s consent and cited the comment to Florida Bar Rule 4-1.6.
According to the staff opinion, “(a) fundamental principle in the client-lawyer relationship is that, in the absence of the client’s informed consent, the lawyer must not reveal information relating to the representation…. The confidentiality rule applies not merely to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source.”
“The inquirer refers to Texas Ethics Opinion 622. That opinion explains that a lawyer may not respond to client’s negative internet review if the response discloses confidential information. The opinion gives an example of a proportional and restrained response that does not reveal any confidential information: A lawyer’s duty to keep client confidences has few exceptions and in an abundance of caution I do not feel at liberty to respond in a point by point fashion in this forum. Suffice it to say that I do not believe that the post presents a fair and accurate picture of the events. The suggested language found in Texas Ethics Opinion 622 would be an acceptable response for the inquirer.”
“An attorney is not ethically barred from responding to an online review by a former client where the former client’s matter has concluded…(h)owever, the duty of confidentiality prevents the attorney from disclosing confidential information about the prior representation absent the client’s informed consent or waiver of confidentiality.”
In 2016, a Colorado lawyer was suspended for six months after he responded to a negative online review and revealed, among other things, that the client had bounced a check and committed unrelated felonies. There have been other disciplinary cases where a lawyer has been sanctioned for revealing confidences in responding to a negative online review, including: In the Matter of Margrett A. Skinner, Case No. S14Y0661 (Ga. Supreme Court 5/19/14), where a Georgia lawyer received a reprimand for revealing confidences in responding to a negative online review, and In re John P. Mahoney, Bar Docket No. 2015-D141 (2015), where a lawyer received in formal admonishment in 2015.
Bottom line: As I have blogged and advised in the past, lawyers are prohibited from revealing client confidences unless an exception to the Bar rules applies either requiring or permitting the disclosure. Permissive exceptions include responding to a Bar complaint, defending a lawsuit filed against the lawyer, and defending against criminal charges involving the representation of a client. A negative online review is not currently one of those exceptions.
Be careful out there.
Disclaimer: this Ethics Alert is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.
Joseph A. Corsmeier, Esquire
Law Office of Joseph A. Corsmeier, P.A.
29605 U.S. Highway 19, N., Suite 150
Clearwater, Florida 33761
Office (727) 799-1688
Fax (727) 799-1670